The Occupational Safety and Health Appeals Board (Board), acting
pursuant to authority vested in it by the California Labor Code and having
granted the petition for reconsideration filed in the above-entitled matter
by Janco Corporation (Employer) makes the following decision after reconsideration.

JURISDICTION

Between September 22, 1998 and January 28, 1999, the Division of Occupational
Safety and Health (the Division), through Associate Industrial Hygienist Thomas
J. Moorman, conducted a complaint inspection at a place of employment maintained
by Employer at 3111 Winona Avenue, Burbank, California (the site).

On January 28, 1999, the Division issued to Employer a citation alleging a
serious violation of section 3382(a) [eye protection], with a proposed civil
penalty of $750.1

Employer filed a timely appeal contesting the classification of the violation
and the reasonableness of the proposed penalty. At hearing, Employer was allowed
to expand its appeal to include the existence of the alleged violation.

The case was heard before Dale A. Raymond, Administrative Law Judge of the
Board (ALJ) in Van Nuys, California. Employer was represented by its Health
and Safety Supervisor, Steven M. Brown. The Division was represented by Associate
Industrial Hygienist Thomas J. Moorman. On October 4, 1999, the ALJ issued a
decision finding a serious violation of section 3382(a) and assessing a civil
penalty of $750.

Employer filed a timely petition for reconsideration on November 8, 1999, the
Division filed an answer to the petition on December 10, 1999, and the Board
granted review of Employer's petition by Order dated December 20, 1999.

EVIDENCE

Employer, a manufacturer of switches and potentiometers, operates a small
plating department where two employees dip small metal parts into chemical tanks.
A number of those tanks contain corrosive chemicals capable of inflicting serious
injury should they contact the eye.2

To apply plating, an employee stands before a tank with a part or parts suspended
from a light wire hook or rack and dips the parts into the tank. In some instances
parts are placed inside a permeable barrel drum, weighing about 2 lbs., which
the employee partially submerges in the tank; in one tank, a metal basket is
sometimes used.

Both employees testified that they wore safety glasses with side shields while
dipping parts; however, the Division produced photographs of the two employees
wearing either safety glasses without side shields or normal prescription glasses
while performing the operation. In one of the photographs, two hooks are being
used to dip a jumper cable into a tank. The employees testified that they did
not use safety goggles, which fully enclose the eyes, or face shields, which
cover the entire face, because the atmosphere around the tanks causes fogging.

The tanks themselves are waist high and, with two exceptions, each has a positive
and negative bar running lengthwise about 4 inches below the surface that would
prevent either a barrel drum or a wire rack from falling all the way in. The
employees testified that a dropped hook would not cause much of a splash. Although
they conceded that either a basket or a jumper cable could fall all the way
in, they testified that in their experience-10 years for one employee and 30
years for the other-they had never received an eye injury nor did they have
any knowledge that an eye injury had ever occurred from a chemical splash. Employers
log of industrial injuries does not disclose any such injury over the past 25
years.

The Division's inspector testified that safety glasses, which are designed
to protect the eyes against flying solid objects, are insufficient to protect
against accidental splashes from the liquids in Employers tanks.

The ALJ accepted the employees testimony that a splash created by dropping
a hook, rack or small part into a tank would not be large enough to endanger
their eyes. However, the ALJ found that a splashing injury could occur in either
of the two tanks that lacked bars if the basket used to dip parts accidentally
fell into the tank or if an employees hand or arm were suddenly plunged
into a tank because the employees hands or arms slipped or were accidentally
bumped. The ALJ also found that the bars on the remaining tanks were too far
apart (12") to prevent a similar slipping or bumping accident or a dangerous
splash should a large object-for instance the jumper cables, accidentally fall
into one of them.

ISSUES

1. Does the weight of the credible evidence support the ALJs conclusion
that Employer violated section 3382(a)?

2. Is the violation properly classified as serious?

3. Is a civil penalty of $750 warranted?

FINDINGS AND REASONS
FOR
DECISION AFTER RECONSIDERTION

1. The Weight of Credible Evidence Supports the ALJs Conclusion that
the Safety Order was Violated.

Section 3382(a) provides:

Employees working in locations where there is a risk of receiving eye injuries
such a punctures, abrasions, contusions, or burns as a result of contact with
flying particles, hazardous substances, projections or injurious rays which
are inherent in the work environment, shall be safeguarded by means of face
or eye protection.

The employer shall provide and ensure that employees use protection suitable
for the exposure. [Emphasis supplied.]

Both plating employees acknowledged the potential hazard of chemical splashes
when they wear safety glasses while dipping parts. Employer also conceded that
there exists, a realistic possibility of employee exposure to the
danger of chemical splashes. However Employer argued that the safety glasses
used provide adequate protection against chemical splashes.

We are asked then to decide whether safety glasses afford protection
suitable for the exposure.

Section 3382(d) incorporates the American National Standards for Occupational
and Educational Eye and Face Protection promulgated by the American National
Standards Institute (ANSI) and published by the American Society of Safety Engineers.

Section 6 of the current ANSI standard (Z87.1-1989) describes and illustrates
the range of available eyewear and Section 7, devoted to Protector Selection,
contains a Selection Chart which breaks down the situations requiring protection
into categories-impact, heat, chemical, dust and radiation-and lists the eye
protection suitable and unsuitable for each. The portion of the chart devoted
to chemicals specifically mentions plating and designates goggles,
eyecup and cover types as the protection suitable for exposure to chemical
splashes. Spectacles3, on the other hand-regardless
of whether or not they have side shields-are designated: Not Recommended.

Here, the ALJs factual findings of possible incidents which could occur
and her conclusion that those incidents could realistically cause a splash large
enough to reach an employees eyes coincide with the concern expressed
in the ANSI standard and have adequate support in the record. In making those
findings and reaching that conclusion, she had to weigh and evaluate conflicting
testimony. The Board has long held that an ALJs resolution of such conflicts
is entitled to great weight because the ALJ was present during the taking of
testimony and was able to directly observe and gauge the demeanor of the witnesses
and weigh their statements in light of their manner on the stand. (See Garza
v. Workmens Compensation Appeals Board (1970) 3 Cal.3d 312, 318; Sav-On
Drug Stores, OSHAB 98-038, Decision After Reconsideration (April 27, 2001).)
By wearing safety glasses, each of the employees conceded the existence of a
risk of a splash directly in the eye. That being so, what is so improbable about
a splash just above the rim of the spectacle that drops down into the eye? The
inconsistency is heightened by the fact that one employee is 6'2"and the
other 5'7". We find that the facts of this case establish that it is not
improbable that a chemical splash could get into the employees' eyes. We conclude
the risk to the taller employee and the employee who is seven inches shorter
is also exposed to the risk of a chemical splash over the rim of his eyeglasses.
Since the 6'2"employee concedes the risk of a direct splash in the eye,
then surely the 5'7" employee also should be concerned about a splash over
the rim of his glasses. We also note that the evidence shows that the photographs
show one wearing safety glasses without side shields and the other wearing normal
prescription glasses. This confirms to us that the "safety glasses"
were not sufficient protection from splashes. Those photographs directly contradict
the employees testimony that they wore safety glasses with side shields
whenever they dipped parts.

The fact that no one in Employers small, two-person plating department
has yet received an eye injury from a chemical splash is not dispositive. The
purpose of the Occupational Safety and Health Act is to prevent accidents, not
to wait from them to occur and fix the blame.... (Gal Concrete Construction
Co., OSHAB 89-317, Decision After Reconsideration (Sept. 27, 1990).)

In its petition for reconsideration, Employer argues that the ALJ failed to
consider the ruling of the Federal Occupational Safety and Health Review Commission
in Con Agra Flour Milling Co., OSHRC Docket No. 88-1250 (Apr. 22, 1993)
[1993 CCH OSHD ¶ 30,045], specifically the Commissions finding that
employee testimony carries greater weight than the testimony of others who lacked
first hand knowledge of the process.

Before discussing that decision, it is important to be clear about the relationship
of the federal OSHA program to that of the California program.

In the Federal Occupational Safety and Health Act of 1970 (29 U.S.C. §§
651 et seq.) Congress adopted a technique which the Supreme Court has aptly
described as a program of cooperative federalism that allows the
States, within limits established by federal minimum standards, to enact and
administer their own regulatory programs, structured to meet their own particular
needs. (Hodel v. Virginia Surface Mining and Reclamation Assn
(1981) 452 U.S. 264, 289.) (Emphasis supplied.) Once a state has enacted
and qualified its plan, federal preemption is removed  so that the
state may exercise its own sovereign powers over occupational safety and health.
There is no indication in the language of the [Federal] act that a state with
an approved plan may not establish more stringent standards than those developed
by Fed/OSHA (citation omitted). A state is required only to provide a program
at least as effective as Fed/OSHAs. (29 U.S.C. §667(c)(2).)
(United Air Lines, Inc. v. Occupational Safety and Health Appeals Board
(1982) 32 Cal.3d 762, 772-773.)

We cannot agree that various decisions by the federal Occupational Safety
and Health Appeals Board [sic] require that the decision of the California
appeals board herein be reversed. Congress has created a reverse preemptive
scheme in its act. Any state that desires to assume responsibility for development
and enforcement of occupational safety and health standards may do so, and
so long as the state plan is as effective as the federal regulations the federal
regulations are without any force or effect within the state. (29 U.S.C. §§665,
667(b).) California has so assumed responsibility and federal law is thus
inapplicable to the issue herein.

The Appeals Board is not therefore constrained to follow federal OSHA
precedent. The California Occupational Safety and Health Act of 1973 establishes
the sovereignty and preeminence of California Law and the interpretation of
that law by California Courts. (Kaiser Steel Corporation, OSHAB
78-1161, Decision After Reconsideration (Mar. 5, 1981).)

Here, Employer relies on the Federal Review Commissions statement in
Con Agra Flour Milling that, Generally speaking, where employees
testify from their own knowledge and experience on matters that pertain to their
specific work activities, their testimony should be given greater weight than
that of witnesses who do not have first-hand experience with the operation in
question. (1993 CCH OSHD at p. 41,234.)

So many factors enter into the assessment of a witness credibility that
simple prescriptions are dangerous. The California Evidence Code contains a
list, by no means exhaustive, of matters to be considered in evaluating a witness
testimony: demeanor; character of testimony; capacity to perceive, recollect
or communicate; opportunity to perceive; character for honesty or veracity;
bias, prejudice, interest or other motive; prior consistent or inconsistent
statements; the existence or non-existence of any fact testified to; and attitude
toward the action or the giving of testimony. (Evidence Code, § 780.)

While employee experience can be helpful and at times crucial in resolving
a factual issue, we refuse to canonize that notion; there are too many other
variables. We note significant inconsistencies in the testimony of the two employees
and emphasize the ALJs unique ability to gauge witness demeanor and weigh
witness statements in light of their manner on the stand. We also note that
any employee witness who is still employed is confronted with the real or perceived
risk of offending his or her employer by giving unfavorable testimony. Furthermore,
where a safety hazard is remote, employees are often unsympathetic to the required
use of personal protective equipment that inhibits movement or interferes with
comfort or convenience. All of those factors-and others-are deserving of consideration
in evaluating employee testimony.

It is not necessary for the Division to present actual proof of hazardous
splashing if a realistic possibility of splashing exists. Conjuncture as to
what would happen if an accident occurred is sufficient to sustain (a violation)
the existence of unsafe working conditions if such a prediction is clearly
within the bounds of human reason, not pure speculation.

Here, the ALJ properly weighed and evaluated the evidence presented by Employer
and the Division and concluded that Employers employees are exposed to
the realistic possibility of eye injury from chemical splashes and that spectacles,
with or without side shields, do not afford suitable protection. 4
We accept those findings and affirm the ALJ's conclusion.5

2. The Violation is Properly Classified as Serious.

For a violation to be classified as serious, two requirements must be met.
First, the Division must prove that, if an accident were to occur, it is more
likely than not that the injury inflicted would result in death or serious bodily
harm; second, it must be shown that the employer either knew or, in the exercise
of reasonable diligence, could have known of the hazardous condition. (Labor
Code, §6432; C.C. Meyers, Incorporated, OSHAB 95-4063, Decision
After Reconsideration (June 7, 2000).)6

Here, Employer did not dispute the Divisions evidence that, if an employee
were to receive a splash in the eye, the injury would likely be serious in nature.
Hence, the first requirement was met.

As for the knowledge requirement, Employer apparently takes the position that,
based on its prior experience and that of the two employees, it had no reason
to suspect that a splashing injury could occur.

But that is not the test. An employer is not required to know the consequences
of a proscribed condition; its awareness of the existence of the violative condition
is enough. (Louisiana-Pacific Corporation, OSHAB 78-256, Decision After
Reconsideration (Oct. 20, 1983); West Coast Steel, OSHAB 81-191, Decision
After Reconsideration (May 15, 1985); C.C. Meyers, Incorporated, supra.)
Here, the violative condition was the wearing of spectacles. If Employer either
knew or could reasonably have foreseen that its employees would wear spectacles
rather than goggles, the knowledge requirement was met; there was no need to
go further and establish its awareness of the realistic possibility of eye injury
from doing so.

Since Employer admitted knowing that its employees wore spectacles, the requisite
knowledge is present, and the violation is properly classified as serious.

3. The ALJ Properly Imposed a Civil Penalty of $750.

The Appeals Board has the ultimate authority to assess penalties (See Labor
Code, § 6602; Capri Manufacturing Co., OSHAB 83-869, Decision After
Reconsideration (May 17, 1985). In exercising that authority, it may reduce
a penalty proposed by the Division; however, there must be a good and sufficient
reason for doing so.

In appealing the size of the penalty, Employer relies, once again, on the absence
of prior injuries and on the testimony of the two employees that they neither
suffered nor saw an eye injury in their combined 30 years of experience. As
discussed above the ALJ properly weighed and evaluated that evidence, along
with the conflicting evidence presented by the Division, in concluding that
there existed a realistic possibility of employee exposure to the danger of
chemical splashes. There is, however, reason to believe that such an injury,
though possible, is unlikely.

In arriving at a proposed penalty, Likelihood-the probability that
an injury will occur as a result of the violation-is a factor that the Division
must consider. (§335(a)(3).) Here, it did so by reducing the gravity based
penalty by 25%, and the ALJ accepted the proposed reduction.

Since the low likelihood of a chemical splash injury was taken into account
in arriving at the assessed penalty, the Board sees no reason to grant a further
reduction.

DECISION AFTER RECONSIDERATION

The Decision of the ALJ dated October 4, 1999 is affirmed, a serious violation
of section 3382(a) is established and the civil penalty of $750 is assessed.

1 Unless otherwise specified
all references are to sections of Title 8, California Code of Regulations.2 The parties stipulated that Tanks 3, 4, 12, 20
and 26 contained corrosive substances such as silver cyanide, potassium cyanide,
copper cyanide, hydrochloric acid, sodium acetate, nitric acid and sodium dichromate
in concentrations with pH values either below 1 or above 11.5.3 The ANSI standard defines spectacles as protective
devices intended to shield the wearers eyes from a variety of hazards.
The standard shows photos of various safety spectacles which all
look like safety glasses as opposed to goggles.4 The employees concern over the fogging hazard
created by goggles could be addressed by wearing ventilated goggles and/or by
the use coatings developed to minimize fogging. (See ANSI Std. Z87.1-1989, ¶6.3.)
Should those solutions prove inadequate, the proper recourse would be a petition
to the Standards Board for a variance.5 We also affirm the ALJ's finding that the materials
from which the safety glasses were made are unsuitable to protect against the
highly acidic and alkaline chemicals used in the tanks.6 The employer knowledge requirement in Labor Code
section 6432 was amended effective January 1, 2000. The analysis here is based
on section 6432 before its amendment.